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ARTICLES Mapping and Matching DNA: Several Legal Complications Of ARTICLES Mapping and Matching DNA: Several Legal Complications of "Accurate" Classifications By AviAM SOIFER* and MIRIAM WUGMEISTER** "All Nature's difference keeps all Nature's peace."' "Something more is included in our classification than mere resem- blance. I believe that something more is... propinquity of descent,-- the only known cause of the similarity of organic beings."2 Introduction Classifications are essential to thought. Law is an archetypal clas- sification scheme. The lawyer's stock-in-trade is the recognition and manipulation of classifications. Once instructed in the language of * Dean, Boston College Law School. B.A., 1969, Yale University; M.U.S., Yale Uni- versity, 1972; J.D., 1972, Yale Law School. ** Associate at Proskauer, Rose, Goetz & Mendelsohn. B.A. 1986, Brandeis Univer- sity; J.D. 1992, Boston University. We wish to thank Dan Tdnkle, Brad Steiner, and Janet Judge for their excellent research assistance, Michael Baram who arranged a conference at the Center for Law and Technology from which this essay evolved, and particularly Milner Ball, Martha Minow, and Benjamin Apt for their customarily insightful critique and comments. 1. JOHN ADAMS, DEFENCE OF THE CONSTUTIMON OF THE UNITED STATES title page (Leonard W. Levy ed., Da Capo Press 1971) (quoting ALEXANDER POPE, FOURTH Epis- TLE, AN ESSAY ON MAN, available in I THE POEMS OF ALEXANDER POPE (Maynard Mack, ed., Methuen & Co. Ltd. 1950)). 2. STEPHEN JAY GOULD, THE FLAMiNoo's SMmE: REFLECTIONS IN NATURAL His- TORY 211 (1985) (quoting Charles Darwin). Gould notes, "Darwin's exterminating angel was, simply, history .... Numerical precision cannot regulate taxonomy because life un- folds in time. Evolution records a complex, irrevocable history; its pathways were not pre- ordained by simple rules or commanding intelligences." Id at 210. In another essay, Gould makes this point: "All complex human traits are built by an inextricable mixture of varied environments working upon the unfolding of a program bound in inherited DNA .... We cannot neatly divide any human behavior into a part rigidly determined by biol- ogy and a portion subject to external influence. The real issue is biological potentiality versus biological determinism." Id. at 327 (emphasis in original). HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 22:1 law, however, many lawyers begin to assume that legal categories are in some way natural. They help to create but also confine the lawyer's craft. Legal pigeon-holes often take on the quality of Platonic essences. The best lawyers and judges must understand the importance of knowing the rules and having a sense of the parameters. But it is also crucial to know that rules can be broken and parameters changed. Because classifications are constructed by human beings, classification schemes betray unthinking presuppositions and unconscious prejudices. Classifications tend to feed the yearning for certainty that is the enemy of clear thinking, and they often undermine justice as well. Many assumptions of objective ordering-the building blocks of classification-have been undermined by recent work in science, law, history, and linguistics.3 Legal classifications, nonetheless, remain im- portant constructs, not to be discarded glibly. Legislation deals in generalities and is designed to give notice to and affect the behavior of numerous people. Adjudication, con- versely, is thought to be tailored more precisely to the situations of individual litigants. But these two approaches to law-making overlap in many respects. Legislators often attempt to consider fairness to in- dividuals beyond group identities, particularly when some dramatic in- cident has focused public attention and prompts legislative response. Adjudication of constitutional issues by the Supreme Court is sup- posed to take into account the importance of the larger issues a partic- ular case raises, beyond the situation of the individual parties.4 3. See, e.g., MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLU- SION, AND AMERICAN LAW (1990); DOROTHY NELKIN & LAURENCE TANCREDI, DANGER- OUS DIAGNOSTICS: THE SOCIAL POWER OF BIOLOGICAL INFORMATION (1989); PETER NovICK, THAT NOBLE DREAM: THE "OBJEcIrrVY QUESTION" AND THE AMERICAN HIS- TORICAL PROFESSION (1988); GEORGE LAKoFF, WOMEN, FIRE AND DANGEROUS THINGS: WHAT CATEGORIES REVEAL ABOUT TiE MIND (1987); JAMES GLEICK, CHAOS: MAKING A NEW SCIENCE (1987); TAMAR FRANKEL, LEGAL CLASSIFICATIONS (forthcoming; on file with Tamar Frankel at Boston University). 4. A very high percentage of the cases the Court hears comes to it on petitions for certiorari, which it grants not as a matter of right but of judicial discretion, and which it grants only for special and important reasons. Sup. Or. R. 17.1. Additionally, the Court employs numerous techniques, rules, and doctrines to avoid deciding constitutional issues when possible. See generally, CHARLES ALAN WRIGHT, LAW OF THE FEDERAL COURTS (4th ed. 1983). The clearest examples of the Court considering issues beyond the individ- ual litigants before it are holdings the Court applies only prospectively. See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969) (upholding a rule concerning the production of employee names to future union elections, but not to the parties before the court). See also Larry Yackle, Form and Function in the Administration of Justice: The Bill of Rights and FederalHabeas Corpus, 23 U. MICH. J.L. REF. 685 (1990). Fall 19941 DNA MAPPING & MATCHING Much of the current work of scientists and philosophers, sociolo- gists and political theorists seems to undermine the law's favored im- age of the rugged, free-willed individual. That hypothetical figure is often proclaimed to be beyond or above classificatory schemes. The explosive issues raised by gene mapping and by the forensic use of DNA tests underscore a basic irony: the more that is known of an individual's unique gene structure, the more such knowledge may be used to burden individuals in employment, to allow scrutiny by gov- ernment officials, and to invite other privacy-invading actions by both public and private functionaries. Overconfidence in scientific evi- dence can have profound effects, conceivably as serious as sending a wrongly-accused person to the electric chair, or creating reasonable doubts about guilt. The current ethical debate about the Human Gen- ome Project and the legal battle now raging about DNA identification in criminal law underscore the necessity for clear thought. Legislative and judicial judgments ought to move past the appeal- ing but ultimately simplistic-even false-practice of resting judgment entirely on the dichotomy between individual and group characteristics. The first part of this Article discusses the Court's inconsistent use of classification schemes. The second part considers the role of inac- curate classifications in determining individual and collective treat- ment. The third part explores the problem of underlying statistics or group information used in an only partially accurate classification scheme. In the conclusion, the analysis is connected to a series of questions surrounding the dangers that lurk now that scientists are exploring the margins of our basic understanding of "the propinquity of descent." We are across the threshold of a scientific revolution. Genomes already have been mapped and embryos zapped in startling ways. Our fin de siecle stage has begun and a Brave New World may lurk just ahead.5 5. For provocative discussions of the ethical implications of these developments, see, e.g., George Annas, Impact of Gene Maps on Law and Society, TRIAL, July 1990, at 42; Janet C. Hoeffel, The Dark Side of DNA Profiling: UnreliableScientific Evidence Meets the CriminalDefendant, 42 STAN. L. Rsv. 465 (1990); John B. Attanasio, The Constitutionality of Regulating Human Genetic Engineering: Where ProcreativeLiberty and Equal Opportu- nity Collide, 53 U. CHI. L. REv. 1274 (1986); John C. Fletcher, Moral Problems and Ethical Issues in Prospective Human Gene Therapy, 69 VA. L. REv. 515 (1983). HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 22:1 L Nature's Difference, Nature's Peace: Inconsistent Use of Group Classifications Rank injustice seems apparent when anyone is not judged as an individual, yet it also seems unjust if someone does not receive the same treatment as others similarly situated. The Supreme Court held that an individual may be "a legitimate class of one." 6 Yet the next year the same Justices insisted, as the Court invalidated affirmative action plans by state and local governments, that equal protection de- mands that individuals be treated as individuals and not in terms of group identity. This fundamental inconsistency both in attitude and in the justifications posited for a wide range of decisions about classifica- tions and individuals is apparent throughout the adjudicatory and leg- islative systems. Despite a recent rash of proclamations by the justices of the Supreme Court about the essential quality of individualistic considera- tion in constitutional law, attention to groups has been a long tradition in equal protection litigation. For more than a century, the Court has concentrated on whether official government action treats a particular class unfairly.7 Still more basically, complaints about different treat- ment because of one's identification with a group-discrimination, in other words-has been a crucial element of our entire legal history, particularly in disputes about social, civil, and political rights. When faced with a claimed deprivation
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